President may constitutionally authorize warrantless wiretaps!!

Jabara v. Kelley June 13, 1979

CASE SUMMARY

PROCEDURAL POSTURE: Plaintiff citizen filed suit against defendants, the National Security Agency, the Federal Bureau of Investigation, and their agents. Plaintiff raised several constitutional and statutory challenges to various practices employed by defendants in conducting an investigation of him. Plaintiff filed a motion for summary judgment and defendants filed a motion to dismiss and for summary judgment.

OVERVIEW: Plaintiff was an active member of various Arab organizations. Defendants maintained an ongoing investigation of plaintiff and employed a variety of tactics therein. The court granted in part and denied in part the motions by both parties and held that: 1) plaintiff's claims could not be rendered moot because of the likelihood of future investigation and unresolved legal issues; 2) plaintiff presented a justiciable First Amendment claim because the unlawful intrusions exceeded a subjective chill of plaintiff's right of free speech; 3) defendants' motion to dismiss all Fourth Amendment claims based on physical surveillance, use of informers, inspection of bank records, and the maintenance and dissemination of the obtained information was granted because plaintiff had no reasonable expectation of privacy therein; 4) there was a genuine issue of material fact regarding the legitimacy of the investigation and the alleged violation of plaintiff's First Amendment rights; and 5) a warrant was not required for the incidental interception of plaintiff's conversations with the targets of wiretaps because the surveillance was for foreign intelligence purposes.

Clear language of Title III reveals that it did not legislate with respect to national security surveillances and that such surveillances therefore are not subject to the warrant requirements contained in 18 U.S.C.S. § 2518. While Title III does not legislate with respect to the necessity of obtaining a warrant for national security wiretaps, it does provide procedures and remedies applicable to any national security wiretap where a warrant is otherwise required by the constitution.

Because of the President's constitutional duty to act for the United States in the field of foreign relations, and his inherent power to protect national security in the context of foreign affairs, the President may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence.

A warrant is not required for foreign intelligence electronic surveillances authorized by the President where the target of the surveillance is an agent of or acting in collaboration with a foreign power.

First, it is clear that the plaintiff's theory of recovery cannot be based on the provisions of Title III. Although Title III requires a warrant for certain types of electronic surveillance, it did not legislate with respect to the President's power to authorize electronic surveillance with respect to matters of national security. 18 U.S.C. § 2511(3). In United States v. United States Court (Keith), 407 U.S. 297, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972), the Supreme Court held that HN8clear language of [**42] Title III reveals that it did not legislate with respect to national security surveillances and that such surveillances therefore are not subject to the warrant requirements contained in 18 U.S.C. § 2518. Accord, Hallinan v. Mitchell, 418 F. Supp. 1056 (N.D.Cal.1976). However, in Zweibon v. Mitchell, 170 U.S.App.D.C. 1, 516 F.2d 594 (1975), (En banc ), a plurality of the Court held that Title III was applicable to any situation where a warrant was constitutionally required for electronic surveillance. In other words, the Court recognized that while Title III does not legislate with respect to the necessity of obtaining a warrant for national security wiretaps, it does provide procedures and remedies applicable to any national security wiretap where a warrant is otherwise required by the constitution.

[*576] Thus, even considering Zweibon, it is clear that Title III does not in and of itself require a warrant for national security investigations. As a result, the issue which must be resolved is whether there is a constitutional basis, aside from Title III, which requires a warrant for electronic surveillance such as that conducted in this case. In Keith, the Court held that [**43] a warrant was constitutionally required for domestic national security wiretaps. However, the Court specifically left open the issue of whether a warrant is required for a foreign national security wiretap:

Because of the President's constitutional duty to act for the United States in the field of foreign relations, and his inherent power to protect national security in the context of foreign affairs, we reaffirm what we held in United States v. Clay, (430 F.2d 165 (5th Cir. 1970), rev'd on other grounds 403 U.S. 698, 91 S. Ct. 2068, 29 L. Ed. 2d 810 (1970)), that the President may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence.

the President's authority with respect to the conduct of foreign affairs does not excuse him from seeking judicial approval before instituting a surveillance, at least where the subject of the surveillance is a domestic organization that is not the agent of or acting in collaboration with a foreign power. Id. 170 U.S.App.D.C. at 62, 516 F.2d at 655.

In light of these decisions, the Court is of the opinion that HN10a warrant is not required [**45] for foreign intelligence electronic surveillances authorized by the President where the target of the surveillance is an agent of or acting in collaboration with a foreign power.

n14. From the In camera affidavits it appears that Title III would not provide a separate ground for requiring a warrant in this case in view of the Supreme Court's holding in Keith that national security surveillance conducted pursuant to executive order is not within the ambit of Title III.

SBD

The BoR clearly authorizes REASONABLE searches and seizures without warrant.

Even if I didn't know what the 4th Amendment said, I would know that the above statement is wrong.

The Constitution specifically delegates to each branch of government certain limited and defined powers. Essentially it tells the government what it can or must do. If it ain't there, they cannot do it (constitutionally).

The Bill of Rights, on the other hand, doesn't authorize anything and doesn't grant anything. Those first 10 Amendments remind the Federal -- not national -- government that all other powers belong to the States or to the people respectively and enumerates SOME of those rights. As opposed to the Constitution telling the government what it CAN do, the BoR tells them what they SHALL NOT, MUST NOT, or CANNOT do.

1] They SHALL NOT make laws about speech and religion. They CANNOT prohibit you from worship. They CANNOT stop you from assembling.....

2] They SHALL NOT infringe on our right to KABA.

3] They SHALL NOT quarter soldiers.

4] They SHALL NOT search without a warrant. They CANNOT issue a warrant without probable cause and an sworn affidavit declaring what is to be searched and why.

5] They CANNOT compel you to testify against yourself. They CANNOT take your property, even for good reason without due process and fair compensation.

6] 7] 8] . . . .

You get the idea.

The idea that you could be searched without a warrant when it is 'reasonable' is just not true. Any search that fails to meet the 4th Amendment conditions is unreasonable and SHALL NOT be done. It is my right (and yours) not to be searched without probable cause that SHALL NOT be violated.

I understand that the courts and the 'law' says that government can do it, but does the law trump the Constitution? I think not and the Founders would agree.

Sheesh. Looks like I got it backwards but as I understand it now the case finally said nothing about 4th amendment rights as the appeals court said he failed to assert them. Cosequently this case says nothing about the current debate. Is that right?

Both the lower court and appeals court had plenty to say about the 4th amendment. The appeals case speaks for itself, and I think can be construed in various ways that are useful in the current debate. But the case does not challenge the Constitutionality of NSA data gathering, nor does it probe or challenge the propriety of filtering that information in response to warrantless FBI requests for specific information.

The district court, in determining that Jabara's fourth amendment rights were violated when the FBI, without a warrant, obtained the summaries of his overseas telegraphic communications, distinguished the holding of the District of Columbia Circuit in Halkin v. Helms, 598 F.2d 1 (1978). There the court held (see note 5 herein at page 275) that application of the state secret privilege required dismissal of plaintiffs' claims based on alleged interception by the NSA of their overseas communications because the fact of interception need not be and was not divulged. Here, on the other hand, defendants had divulged the interception and later transmittal to the FBI. ^8 Thus, the district court reasoned, the state secret privilege was no impediment to the adjudication of Jabara's fourth amendment claim. The district court went on to hold, citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), that the fourth amendment was implicated since Jabara had a reasonable expectation of privacy with respect to his overseas telegraphic communications. The district court further held that, since the record, classified or otherwise, did not reveal evidence that Jabara was a foreign agent or was acting in collaboration with a foreign agent, even if there is a foreign agent exception to the warrant requirement, the exception could not be applied here. The district court therefore granted summary judgment and injunctive relief to Jabara. 476 F.Supp. at 577-579.
As heretofore stated, Jabara does not contend on appeal that the NSA's interception of his foreign telegraphic communications violated his fourth amendment rights, and therefore we may take as a given the proposition that the NSA lawfully received and was in possession of the communications. From this proposition defendants argue, we think correctly, that Jabara's fourth amendment rights were not violated when the summaries were turned over to the FBI because this was not a "search" or "seizure" within the meaning of the amendment. ...
Jabara contends, however, that there was a "search" or "seizure" when the summaries were turned over by the NSA to the FBI under the holding in Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980). There some pornographic 8-millimeter films, in boxes that were in sealed packages, were misdelivered after shipment, and the recipient opened the packages. On the boxes were descriptions and drawings that clearly indicated their contents. The recipient, however, did not view the films but turned them over to an FBI agent. FBI agents, then, without a warrant, viewed the films with a projector. The question before the Court was whether the films should have been suppressed because the showing of the films with a projector was an illegal search under the fourth amendment.
In a five-to-four decision, the Court held that the showing of the film with a projector was a "search" and therefore the showing violated the fourth amendment. Justice Stevens authored the lead opinion for the majority, saying (447 U.S. at 654, 100 S.Ct. at 2400):

(N)otwithstanding that the nature of the contents of these films was indicated by descriptive material on their individual containers, we are nevertheless persuaded that the unauthorized exhibition of the films constituted an unreasonable invasion of their owner's constitutionally protected interest in privacy. It was a search; there was no warrant; the owner had not consented; and there were no exigent circumstances.
It is perfectly obvious that the agents' reason for viewing the films was to determine whether their owner was guilty of a federal offense. To be sure, the labels on the film boxes gave them probable cause to believe that the films were obscene and that their shipment in interstate commerce had offended the federal criminal code. But the labels were not sufficient to support a conviction and were not mentioned in the indictment. Further investigation-that is to say, a search of the contents of the films-was necessary in order to obtain the evidence which was to be used at trial.
The fact that FBI agents were lawfully in possession of the boxes of film did not give them authority to search their contents. Ever since 1878 when Mr. Justice Field's opinion for the Court in Ex parte Jackson, 96 U.S. 727, 24 L.Ed. 877, established that sealed packages in the mail cannot be opened without a warrant, it has been settled that an officer's authority to possess a package is distinct from his authority to examine its contents.

(Citations and footnotes omitted).
In the instant case, on the contrary, Jabara's very words, summaries of which were supplied to the FBI, had been lawfully intercepted by and were in the records of the NSA. NSA therefore already had in its records, after it intercepted, all that it supplied to the FBI. Jabara appears to argue, however, that the fact that the NSA acquired, stored and retrieved a large amount of information using sophisticated, high-technology methods and equipment should lead to the conclusion that the NSA's acquisition of Jabara's telegraphic messages was not a search and that the only search occurred when, at the request of the FBI, the NSA retrieved Jabara's messages and delivered summaries to the FBI. There are two difficulties with this argument. First, the simple fact remains that the NSA lawfully acquired Jabara's messages, and these are all that it delivered to the FBI. Second, to the extent that Jabara relies on alleged facts surrounding the methods and technology of acquisition, storage and retrieval of information, such are, as was held by the district court, subject to the state secret privilege. It was recognition of the effect of the privilege that caused the district court to limit its consideration to the question whether the targeting of Jabara's communications by the FBI, in obtaining the summaries from the NSA, was a fourth amendment violation irrespective of the facts surrounding the acquisition, storage and retrieval of the information by the NSA. ... [snip discussion of "Bailey" case, where a warrant is required to insert a "beeper" to track a drum of chemicals] ...
We consider it irrelevant whether a particular governmental intrusion is classified as a "search" or as a "seizure." What matters is whether it violates an individual's legitimate expectation of privacy. Therefore, it is not necessary to speculate whether a beeper "searches" or "seizes" anything.
Our court then quoted (628 F.2d at 941) from Justice Harlan's concurring opinion in Katz to the effect that, while a reasonable expectation of privacy is the test, this means that the person asserting the claim must have exhibited an actual (subjective) expectation of privacy and that the expectation must be one that society is prepared to accept as reasonable.
Applying this analysis utilized by our court in Bailey, we agree that Jabara exhibited an actual (subjective) expectation of privacy when he sent the telegraphic massages overseas. But the question here is whether he had an expectation of privacy that society is prepared to recognize as reasonable after the messages had lawfully come into the possession of the NSA. For it was after the messages were intercepted and within the possession of the NSA and only when they were delivered to the FBI that Jabara contents that his fourth amendment rights were violated. We do not believe that an expectation that information lawfully in the possession of a government agency will not be disseminated, without a warrant, to another government agency is an expectation that society is prepared to recognize as reasonable. In this connection, we believe that it is irrelevant that Jabara did not know that the NSA had intercepted his messages. To hold otherwise would in many instances require, for fourth amendment purposes, a succession of warrants as information, lawfully acquired, is passed from one agency to another.
We conclude, therefore, that Jabara's fourth amendment rights were not violated when the FBI obtained summaries of his overseas telegraphic communications from NSA and that the district court erred in granting summary judgment to Jabara and that, on the contrary, it should have granted summary judgment to defendants as to this claim.

There was a brief dissent ...

MERRITT, Circuit Judge, dissenting from the order of the Court denying a rehearing en banc.
I believe that Jabara's Fourth Amendment rights were probably violated when the FBI, without a warrant, requested and received summaries of Jabara's overseas messages. I am of the opinion that the issue is of sufficient importance to require a hearing by the full Court.

The fact pattern admits obfuscation, since more than one government agency is involved. I'll try to make a short version with regard to the "warrantless wiretapping" charge. The lower court held that the government action violated Jabara's fourth amendment rights because the FBI selection of NSA intercepts ("give us all your Jabara stuff") targeted Jabara, was not accompanied by a warrant, and Jabara did not fit the "foreign agent" definition.

The Circuit Court of appeals construed the lower court decision in a specific way, "that Jabara's fourth amendment rights were violated when the FBI, without a warrant, obtained the summaries of his overseas telegraphic communications." The Circuit Court focused on the passing of information from the NSA to the FBI, and blew off any questions about the obtaining or "filtering" of NSA-held data. Intellectually, that's pretty cheezy. At any rate, the Circuit Court said the NSA surveillance was lawfully received because Jabara didn't assert otherwise; and information in the lawful possession of the NSA can be passed to the FBI without a warrant.

I think the fact pattern is pretty square with the fact pattern at hand in the current NSA debate; but if you take the Circuit Court case on it's face, it doesn't probe the questions of obtaining, filtering or forwarding NSA-held data. In that sense, I think it isn't helpful. As a matter of intellectual pursuit, the two cases together are darn good.

Eventually, what one who studies this stuff realizes, is that nearly ALL appellate cases are outcome driven. The fact that this Circuit Court decision is (IMO) logically weak does not mean that its outcome would not be upheld under a Supreme Court review. Right now, this case is the law of the Circuit.

Thanks. I appreciate your efforts to enlighten us.

Too much verbiage, so I've been criticized. Anyhow, I was curious about the Halkin case because the appellate court in Jabara uses Halkin to plant the (false) idea that if the government stonewalls the fact of NSA surveillance, the plaintiff has no case. Here is a piece of the Jabara appellate case (context in post above) ...

The district court, in determining that Jabara's fourth amendment rights were violated when the FBI, without a warrant, obtained the summaries of his overseas telegraphic communications, distinguished the holding of the District of Columbia Circuit in Halkin v. Helms, 598 F.2d 1 (1978). There the court held (see note 5 herein at page 275) that application of the state secret privilege required dismissal of plaintiffs' claims based on alleged interception by the NSA of their overseas communications because the fact of interception need not be and was not divulged. ...
[Note] 5 This was so held in Halkin, supra; indeed in Halkin, it was held that, pursuant to the state secret privilege, the government did not even have to divulge to plaintiffs whether the NSA had intercepted their overseas communications. Here, as previously indicated, the government has divulged in the open record that NSA did intercept and later turn over to the FBI Jabara's communications.

I thought a rule where the government could absolutely shut off claims of civil rights violation by the simple device of saying "it's an NSA matter and therefore state secret," seemed harsh. Here is what the court said in Halkin ...

On a prior appeal, Halkin v. Helms (Halkin I ), 598 F.2d 1 (D.C.Cir.1978), [n 25] this court upheld a claim of the state secrets privilege by the Secretary of Defense and held that NSA was not required to disclose in discovery whether it had intercepted any of plaintiffs' communications. As a result of that ruling, plaintiffs' claims against the NSA and several individual officials connected with that agency's monitoring activities could not be proved, and the complaint as to those defendants was dismissed. Plaintiffs were left, however, with their claim that notwithstanding the practical bar to suit against NSA worked by the state secrets privilege, the CIA and the individuals responsible for submitting the watchlists to NSA could be held liable based on a presumption that the submission of a name resulted in interception of the named person's communications.
n 25. A related case in this court, In re Halkin, 598 F.2d 176 (D.C.Cir.1979), was an action seeking a writ of mandamus to vacate a trial court order prohibiting out-of-court statements by the parties on information produced in the course of discovery.
Halkin v. Helms, 690 F.2d 977 (D.C. Cir. 1982)

Whoa! What the court is saying to the government is "you don't have to admit the NSA was involved, but if you take that approach, your adversary obtains a presumption that his communications were intercepted, and the case moves forward against the agency that requested interception of communication."

Yup. The appeals court in Jabara was definitely using intellectual hocus pocus.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.